More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power Over Commerce and Manufacturing in Nineteenth-Century Constitutional Law

Abstract

Recent scholarship calls into question the traditional realist-behavioralist interpretation of the justices of the Fuller Court as motivated by a desire to promote their policy preferences for laissez-faire economics. This essay extends the assault on what might be referred to as the Holmesian para digm of the tum-of-the-century Court by exploring the jurisprudential origins of that Court's decision in the infamous Knight case, in which the justices ruled that Congress had no authority under the commerce clause to regulate production. By demonstrating that the Court's distinction be tween commerce and manufacturing was a commonplace of nineteenth- century constitutional law and not an "activist" innovation, I hope to underscore the advantages of situating Supreme Court decision making in the context of distinctive jurisprudential traditions. Revisiting this earlier commerce clause jurisprudence also sheds light on the contemporary Court's dramatic resurrection of this contentious pre-New Deal tradition in the recent case of U.S. v. Lopez (1995).